Monteal L.H. & P. Cons. v. City of Westmount, [1926] SCR 515

Supreme Court of Canada

Monteal L.H. & P. Cons. v. City of Westmount, [1926] S.C.R. 515

Date: 1926-06-14

Montreal Light, Heat & Power Consolidated (Defendant) Appellant;

and

The City of Westmount (Plaintiff) Respondent,

1926: March 5; 1926: June 14.

Present: Anglin C.J.C. and Idington, Duff, Mignault, Newcombe and Rinfret JJ.

ON APPEAL FROM THE COURT OF KING’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Municipal corporation—Assessment—Valuation roll—Pipes, poles, wires and transformers—Meters—Immovable or movable—“Immovable” “real estate” “real property”—Terms similar for purposes of taxation—Action for taxes—Defence—Property—Non-assessable—Cities and Towns Act, art. 5730, R.S.Q. 1909—Art. 2731, R.S.Q. 1909—Arts. 376, 380, 384 C.C.

The respondent brought an action to recover from the appellant company $8,626.86 for municipal taxes and $4,831.05 for school taxes as assignee of the Board of Schools Commissioners, for the years 1920-21, 1921-22 and 1922-23. The subjects of the taxation were gas mains or pipes located in the public streets, a system of electric poles and wires, almost entirely upon the public streets and meters placed in the

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houses of the consumers in the municipality. In the valuation roll for the years 1920-21 and 1921-22 all the electric property of the appellant company, including the meters, which were of substantial value, was embraced in a single gross valuation and was the subject of but one assessment. In the exercise of their powers of taxation, instead of using the term “immovable” as found in art. 5730, R.S.Q. 1909, the municipal corporation substituted in its by-laws the term “taxable real estate” and the Board of School Commissioners in its resolutions the term “taxable real property.”

Held that the pipes, poles, wires and transformers are immovables within the meaning of that term as used in art. 5730 of the Cities and Towns Act, R.S.Q., 1909, and are subject to taxation as such. Bélair v. Ste. Rose (63 Can. S.C.R. 526) foll.

Held, also, that the meters, being movables within art. 384 C.C., do not lose that character by reason of the mode or purpose of their being placed by the company upon immovables not belonging to it, to which they are, when in use, temporarily affixed; and they are not therefore taxable immovables. Idington J. dissenting.

Held, also, that the assessments of the electric system for the years 1920-21 and 1921-22 must be invalidated in toto as being, to an extent not apportionable, made upon movables, i.e., electric meters; and no part of the taxes sued in respect of them are recoverable. Idington J. dissenting.

Held, also, that, although the words “immovable” and “real estate” and “real property” are not in practice interchangeable, the terms “real estate” and “real property” should be taken, for the purposes of the taxation by-laws and resolutions, to include property which is held to be “immovable” by nature as the pipes, poles, wires and transformers.

Held, further, that a defence to a claim for taxes that the taxed property is non-assessable, if otherwise maintainable, is not precluded by the failure of the assessed party to invoke any special machinery afforded for appeals from assessments or any summary proceedings available to have valuation rolls annulled for irregularity. Donohue v. St. Etienne de la Malbaie ([1924] S.C.R. 511) foil. Idington J. dissenting.

Judgment of the Court of King’s Bench (Q.R. 38, K.B. 406) rev. in part, Idington J. dissenting.

APPEAL from the decision of the Court of King’s Bench, appeal side, province of Quebec[1], reversing in part the judgment of the Superior Court and maintaining in part the respondent’s action for taxes.

The material facts of the case and the questions at issue are fully stated in the above head-note and in the judgments now reported.

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Lafleur K.C. and Montgomery K.C. for the appellant.

Geoffrion K.C. and Weldon K.C. for the respondent.

The judgment of the majority of the court (Anglin C.J.C. and Duff, Mignault, Newcombe and Rinfret JJ.) was delivered by

Anglin C.J.C.—This action is brought to recover municipal taxes amounting to $8,626.86 and school taxes amounting to $4,831.05 for the years 1920-21, 1921-22, 1922-23 claimed, with interest, by the city of Westmount from the appellant company. For the school taxes the city sues as assignee of the Board of School Commissioners. The subjects of the taxation, of which complaint is made, are gas mains, located in the public streets, a system of electric poles, wires and transformers, almost entirely upon the public streets, and meters placed in the houses of the consumers in the municipality. The appellant company owns neither land in the municipality nor other property than that so described and whatever interest it may have in the land occupied by its poles, pipes, wires and transformers by reason of the exercise of its statutory right to such occupation. (Compare Gas Consumers Co. v. City of Toronto[2], and Ahearn & Soper v. New York Trust Co.[3], per Duff J.

The preliminary question has arisen in the consideration of this appeal whether it sufficiently appears that the electric and gas meters of the appellant are included in the assessments in question. The total assessment in respect of the electric system is, for each of the three years, identical in amount, viz., $85,000. For the first two years electric meters are expressly included as subjects of assessment and for the third year, while these meters do not appear in the roll nominatim, the continuance of the same total in the valuation is said to indicate that it covers the same items as in the two previous years. In the case of the gas system the assessment for each of the three years is likewise the same, viz., $130,000, and the items are given as “gas mains and equipment,” in the first two years and as “pipes, lines, etc.,” for the third year. The parol

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evidence as to the inclusion of both gas and electric meters for each of the three years as items of the property assessed is not as full and definite as might have been expected had this matter been regarded as of serious moment at the trial. Such allusions as we find in the testimony rather point to these meters having been treated as part of the properties assessed. Their inclusion is specifically averred in the defendant’s plea; but the plaintiff in its answer denies this with other allegations. The learned trial judge says nothing which would lead one to suppose that he intended to pass upon the question of the inclusion of the gas and electric meters in the property assessed in any of the three years. While he makes no specific allusion to meters he may have intended to deal with them in the comprehensive phrase: “autres appareils destinés à la distribution.” In the Court of King’s Bench, however, from the judgment of Mr. Justice Tellier, which was concurred in by Allard, Howard and Letourneau, JJ.A., it would seem probable that the meters, both gas and electric, were there regarded as items included in the several assessments. That learned judge said:—

Les biens dont il s’agit * * * comprennent * * * les compteurs électriques qui tiennent aux fils et qui enregistrent la somme de courant consommée * * * et les compteurs auxquelles les tuyaux de gaz aboutissent.

We are, however, of the opinion that in regard to the construction of such public documents as assessment and valuation rolls it is eminently fitting that the rule embodied in the maxim ut res magis valent quam pereat should be applied. The assessments of the gas system are obviously open to the construction that the “equipment” included in each of the assessments for the first two years was equipment appertaining to the “gas mains,” such as valves and connections, and that the “et cetera” of the assessment for the third year included only things eiusdem generis with or appurtenant to “pipes and lines.” The assessment of the electric system for the third year is in terms restricted to “poles, transformers and wires” and this change may well have been made in order to exclude the meters which had been expressly included in the two earlier assessments. The mere similarity in the amount of each of the three assessments of the electric system is scarcely sufficient to justify the court in treating as still included in

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the third year an item that had apparently been designedly dropped, especially if to do so would invalidate the entire assessment.

For these reasons we think the assessments for the three years of the gas system and the assessment for the third year of the electric system must be treated as not including meters in any of them. But the inclusion of electric meters in the assessments for the years 1920-21 and 1921-22 being explicit does not admit of any controversy.

The appellant maintains that the property in respect of which the right of taxation is asserted was non-assessable. This defence to the claim for taxes, if otherwise maintainable, is not precluded by the failure of the appellant to invoke the special machinery afforded for appeals from assessments or any summary proceedings available to have valuation rolls annulled for irregularity. Donohue Bros. v. St. Etienne de la Malbaie[4].

To the valid imposition of a municipal or school tax there are always two requisites—statutory power to impose the tax and the due exercise of such power by the municipality or school corporation, as the case may be. Both the existence of the power and its efficient exercise must be clearly established, the taxpayer being entitled to the construction most beneficial, to him in the case of reasonable doubt. Partington v. Attorney-General[5]. The appellant maintains that both requisites are lacking in regard to the taxes sued for.

Section 2 of the charter of the city of Westmount, 3 Edw. VII, c. 89, reads as follows:—

The city of Westmount shall be subject to the provisions of the Cities and Towns’ Act, 1903, except in so far as is inconsistent with the provisions of this Act.

The Cities and Towns’ Act of 1903 (3 Edw. VII, c. 38) was embodied in the R.S.Q., 1909, as arts. 5256-5884 and was subsequently re-enacted as c. 65 of the statutes of 1922 (2nd session) 13 Geo. V. Section 474 of the Act of 1903 (art. 5730 of the R.S.Q., 1909; s. 510 of the Act of 1922) reads as follows:

The council may impose and levy, annually, on every immovable in the municipality a tax not exceeding two per cent of the real value as shewn in the valuation roll.

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Nothing in the city charter excludes or qualifies the application of this provision.

By art. 2731 of the R.S.Q., 1909, Boards of School Commissioners are empowered to impose assessments “upon all taxable property in the municipality.” Taxable property, is, by art. 2521 (16) declared to mean “the real estate liable for school taxes,” and by art. 2521 (15), as amended by 4 Geo. V, c. 22, s. 1 (1914), real estate is defined as

including everything that is immovable by virtue of the municipal laws governing the territory of school municipalities.

The sole question with regard to the statutory power to impose the taxes sued for—municipal and school alike—is whether the subjects of taxation in this instance are immovables within the meaning of that term as used in art. 5730 of the R.S.Q., 1909. That question formed the principal matter of discussion at bar; but, while not free from difficulty, it would seem to be concluded adversely to the appellant by the decision of this court in Bélair v. Ste. Rose[6], as to the gas mains and electric poles and wires, which, for the reasons there stated, must be regarded as “buildings (bâtiments)” within the meaning of art. 376 C.C. and, therefore, “immovable by their nature.” In that case three things were distinctly held: (a) that the scope of the word “immovable” in art. 5730 (R.S.Q., 1909) is to be ascertained by reference to the provisions of the Civil Code, arts. 376 et seq: (b) that the word “buildings” (bâtiments) in art. 376 C.C. is used in the sense of “constructions”; (c) that it is immaterial to its taxability under art. 5730 that a construction is erected on land which does not belong to the person who owns the construction. There is no distinction in principle which would justify the taxation of the bridge in that case under art. 5730 as an immovable and warrant the exemption of the appellant’s gas mains, and electric poles and wires in the present case as movables. The materials of which the structures—bridge and distribution systems alike—were comprised were all movables before being placed in situ and made part of such structures. Once incorporated in the structures, however, the materials lost

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that character; and the structures themselves took on the character of immovables.

Nor does it appear to matter for the present purpose whether the immobilization of the pipes, poles and wires be attributed to their physical connection with the land in or upon which they are placed, or with the buildings from which they radiate as parts of a distribution system. In either view they are immovables actually (in the sense of physically) situated in the municipality and thus “come within the letter of the law” which confers the power to tax. Partington’s Case[7]. The immobilization of the transformers may not be so clear. But they are usually attached to the company’s poles and form an integral part of the system quite as much as the wires strung on the poles to carry the current.

For these reasons, as well as those stated by Mr. Justice De Lorimier and Mr. Justice Tellier, and upon the authorities cited by those learned judges, the pipes, poles, wires and transformers must be regarded as taxable immovables. Particular reference may be made to art. 445 of the charter of the city of Westmount, 8 Edw. VII, c. 89, s. 39.

To the electric meters, however, different considerations apply. In se these appliances or pieces of mechanism, are movables within art. 384, C.C., and they would not appear to lose that character by reason of the mode or purpose of their being placed by the company upon immovables not belonging to it, to which they are, when in use, temporarily affixed. Moreover, the wires to which the meters are attached belong not to the company but to the householders.

The meters are put in the premises of consumers for temporary purposes and are so fastened if at all, that they can be replaced without difficulty. They are frequently changed, either because they must be tested and re-certified from time to time, or because of breaks in the tenancy of the property in which they are used. They are not “attached for a permanency.” Their removal involves no breakage, destruction or deterioration of the interior wires to which they are attached, or of the walls against which they are placed. (Art. 380 C.C.). They would,

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therefore, seem to fall within the category of movables and not to be taxable as immovables within art. 5730 of the R.S.Q., 1909. Liquidation de la Société Générale de Papeterie c. Delor[8], cited by the appellants is closely in point; see vol. 4, Hue, p. 24.

Had the valuation of the poles, wires and transformers been made separately from that of the meters the assessments of the electric system for the years 1920-21 and 1921-22 could have been maintained as to all except the last mentioned. Donohue v. St. Etienne de la Malbaie[9]. But, in each of these two years, all the electric property of the appellant is embraced in a single gross valuation and is the subject of but one assessment. That the electric meters are of substantial value and form a not unimportant item in each of the total assessments of $85,000 seems clear. It is not within the jurisdiction of the Superior Court to apportion the amount of these assessments between the taxable and non-taxable property included in them. Being, to an extent not indicated, made upon movables, the entire assessments of the electric system for the two earlier years are thereby invalidated and no part of the taxes sued for in respect of them is recoverable.

The exercise in the present case of the powers of taxation, conferred as above indicated, is evidenced by three municipal by-laws and three resolutions of the Board of School Commissioners. Each of the three by-laws provides for the imposition and levy of taxes “on the taxable real estate situate within the limits of the city;” each of the resolutions provides for imposing a tax on “all taxable real property liable therefor in the school municipality of the city of Westmount.”

To employ the very term by which the property made taxable is designated in the Act which confers the power to tax was obviously the certain method of subjecting to the taxation everything which the municipal corporation and the Board of School Commissioners are given the right to tax. That certain and safe method has been departed from by both governing bodies. For “every immovable,” the term found in art. 5730 (R.S.Q., 1909),

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the municipal corporation has substituted “the taxable real estate,” and the school commissioners “all taxable real property.” We are thus confronted with two questions: Is everything comprised in the terms “real estate” and “real property” an “immovable” within the purview of art. 5730? And do these terms cover such immovables as the gas mains, poles, wires and transformers in question?

Neither in the Cities and Towns’ Act, in the General Interpretation Act (R.S.Q., 1909, art. 36), nor in the Civil Code is there any definition either of “real estate” or of “real property.” These terms must, therefore, be given their ordinary and natural meaning. While not technical terms known to the civil law, they are such in English law and their connotation is well established. The two terms are practically synonymous. (Stroud’s Judicial Dict., 2nd ed., p. 1660). Without acceding to the view that the words “immovables,” “real estate” and “real property” are in practice interchangeable, we are satisfied that the term “immovables” comprises everything which could be regarded as real estate for the purposes of the taxation by-laws and resolutions before us; and while it may not be so clear that such immovables as the pipes, poles, wires and transformers in question are real estate and real property, the weight of authority certainly favours that view.

The civil law divides all property into movable and immovable; English law divides all property into real and personal. While the real property of English law is not entirely co-extensive with the immovables of the civil law, speaking generally it may be so regarded for purposes such as those with which we are now concerned. Black-stone says:

Things real are such as are permanent, fixed, and immovable, which cannot be carried out of their place, as lands and tenements; things personal are goods, money and all other movables which may attend the owner’s person wherever he thinks proper to go. (2 Bl. Com., c. 2).

Real estate comprises all hereditaments. That the pipes, poles, wires and transformers here in question would be hereditaments in English law seems clear. Metropolitan Ry. v. Fowler[10]. If used, as they probably are, in the

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sense attributed to them by English law, the terms “real estate” and “real property” of the by-laws and resolutions now before us comprise such property as the gas mains, poles, wires and transformers. In the case of the school commissioners’ resolutions this scarcely admits of doubt, since “taxable property” means “the real estate liable for school taxes” (Art, 2521 (16) ) and “real estate,” the synonym of “real property,” is declared in the Public Instruction Law, to include everything that is immovable under the municipal law governing the territory. Art. 2521 (15) R.S.Q., 1909. But, without the aid of any such definition, “real estate,” having regard to its complement in the classification of property and things, viz., “personal estate,” must, in the absence of some clear indication of its being employed in a more restricted sense, be taken to include property which is held to be immovable by nature, as are the pipes, poles, wires and transformers under consideration.

The appeal must therefore be allowed as to the taxes based on the assessments of the electric system for the years 1920-21 and 1921-22 and the appellant is entitled to its costs in this court and the Court of King’s Bench. As to the taxes in respect of the assessments of the gas system for the three years and the assessment of the electric system for the year 1922-23, the judgment appealed from will be maintained; and the respondent will have the costs of the action.

Idington J. (dissenting).—This is an appeal from the Court of King’s Bench, in an action to recover the taxes imposed for three years upon appellant’s property in respondent city.

I agree with the reasoning of Mr. Justice DeLorimier of the Superior Court who tried the case and gave judgment for the respondent, and that of Mr. Justice Tellier in the Court of King’s Bench, with whom the other judges of that court agreed, with the exception of Mr. Justice Green-shields who dissented.

I do not feel, when I so fully agree with their said reasoning, that I should merely repeat it herein, and I therefore hold that this appeal should be dismissed with costs.

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I may, however, refer to some features of the case (which is certainly a most remarkable one) to which no attention was paid or at least pressed on the attention of the said courts, or either of them.

The assessment was made upon the plant of the appellant in said city, found to be immovable by said courts, and hence a proper basis upon which to rest the several assessments and the imposition of proper taxes thereon.

The appellant’s counsel started in this court by relying not only upon the grounds they had taken in the courts below, but also, for the first time, upon two further rather curious grounds; that parts of the erection of the appellant, which consisted of their electric plant, were “transformers” and described as such in the assessment in question; and “metres” for electric supplies and gas supplies respectively, also so described, and hence must be held movable, and therefore could not be assessed as immovables.

As to these transformers, they were firmly tied by wires and metal braces to the posts supporting the electric wires and were certainly part and parcel of the immovable part of the property, much more so than the posts were in the ground or the majority of frame houses resting on a wall are, and easily moved.

But occasions might arise, if they happened to be burnt out, for their being replaced.

So is any house so liable, and the Cities and Towns Act, which governs the whole question in this case involved, provides for the burning, in whole or in part, of buildings and relief being given, and, I submit, covers the cases of burning out.

Again it is said the transformers provided for changing the wire or pressure thereon and thus the increasing or the reduction of the power. I am surprised at such a contention in face of the facts that all our houses have windows so fitted as to move up or down to let in fresh air, or shut out cold air; and in this climate there are storm windows used in winter and moved in summer, and Venetian blinds used in summer and removed in winter; and all these things are of great value and form part of the

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value of the house so equipped and are assessed accordingly therewith, as part thereof, and still held to be immovable. Can we hope to escape our taxes on any such pretext? It seems to me a desperate suggestion that because of such like characteristics the whole assessment is to be declared null and void.

I will not argue such a question but merely state it and hold that such a feature herein is of no consequence.

To rely on the absolutely literal reading of art. 384 C.C., and declare such to be the law applicable herein and thus exempt movable houses from taxation, would be something I cannot assent to, especially when that is immediately preceded by the elaborate definition of “immovables.”

I may add that there are manifold other illustrations conceivable as shewing the absurdity of such a pretension.

The metres are something a trifle more arguable for I can conceive of them being loosely hung on to any part of the main property, but that is evidently not the case with those in question or we would have heard of it. The pretext made as to them is that those used for the electric current have to be changed every six years. So have the shingles on our roofs, only not quite so frequently.

I am, with due respect, very sceptical as to the alleged facts and as to the alleged value or cost of such changes.

It is a resealing or stamp on the instrument imposed by some Federal legislation that has to be met. These are so trifling in that regard that, forming as they do part of the appellant’s plant even though situate on other people’s ground (as, in the case of electric metres, they may be) I cannot hold such large assessments as in question are to be held as rendered null and void by reason of their being mentioned.

The gas metres, if I understand the evidence, are not necessarily in the houses of other people but may be outside where the owner’s pipe meets that of the appellant; probably on the line of the street allowance. Did anyone ever hear of those alleged movables, so situated, being carried away? The witness is, after telling how the gas pipes meet outside, talking of gas metres as though they had been named under equipment, of which there is no evidence.

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But it is clear that they are not mentioned in the copies of the assessment rolls in evidence and as to the electric appliances also for the last year, yet they are all, even for that year, treated by the appellant as nullifying the whole assessment.

Then it was pointed out to counsel that in the recent case Shannon Realties, Limited v. Ville de St. Michel[11], the Privy Council held that if the party assessed failed to appeal from the assessment, then unless in the case of fraud, no relief could be given. I cannot agree with the contention that in principle this case does not apply. That contention is not what I take from reading the judgment of their Lordships in the court above.

It was much more ultra vires to assess the land in question therein at its full value when the line was so clearly drawn in law at a fractional part thereof, than in this case where incidental to description of an immovable he mentions parts of it just as if an assessor of a house had happened to name the windows.

If a clear cut case of ultra vires were presented, I think something might be said for the contention set up in the case of The Toronto Railway Company v. Toronto[12], where the whole amount called in question was personal property for which assessment had been imposed, and no possibility of confusion existed. Personal property was as a whole assessable under the Ontario law, and named distinctly as such. I infer that was how they were enabled to identify the item there in dispute, as the report shews in above respect. There was no report of that case as dealt with in the court below in the Ontario reports. I am driven therefore to infer something not made clear.

This is not that case nor is the law, that is to be considered herein, the same as in question therein.

And the Ontario law on which said Toronto case turns was amended to meet such emergency, as is shewn in R.S.O., 1914, c. 195.

Section 498 of the Cities and Towns Act, 13 Geo. V, c. 65, s. 487, now s. 498, R.S.Q., 1925, vol. II, are identical and read as follows:—

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After all the complaints filed have been decided, the council shall declare the roll homologated; and the roll so homologated shall remain in force, until the coming into force of a new roll.

I think that covers the case of the last assessment for the year 1922-1923 in question herein for said Act of 13 Geo. V, c. 65, came into force on 1st July, 1923. But if I am in error then the previous statutes to same effect will apply to it as well as to the previous ones.

The following articles 5706, 5707, 5708 and 5709 of the R.S.Q., 1909, are respectively applicable to the prior assessments in the two earlier years in question herein.

5706. During such time, any person who, personally or as representing another person, deems himself aggrieved by the roll as drawn up, may appeal therefrom to the council, by giving for that purpose a written notice to the clerk stating the grounds for his complaint.

5707. The council, at its first general session after the expiration of the thirty days mentioned in article 5705, shall take into consideration and decide all the complaints made under article 5706.

After having heard the parties and their witnesses, under oath administered by its presiding officer, as also the assessors if they wish to be heard and the witnesses produced on behalf of the municipality, the council shall maintain or alter the roll, as it may think fit.

5708. In all cases, the council shall proceed, at such session or at any adjournment thereof, to revise and homologate the roll, whether it be complained of or not. It may also correct the form of the language used.

5709. At such session, or so soon thereafter as all the complaints filed have been decided, the council shall declare the roll homologated; and the roll so homologated shall remain in force, until the coming into force of a new roll.

and the articles 4507, 4508, and 4509, from the supplement to said revision, are as follows:—

4507. The council at its first general session, after the expiration of the thirty days mentioned in article 4505, takes into consideration and decides all the complaints made under the preceding article.

After having heard the parties and their witnesses, under oath, administered by its presiding officer, as also the valuators if they wish to be heard, the council maintains or alters the roll, as to it seems meet.

4508. In all cases, it is the duty of the council to proceed at such session, to the revision and homologation of the roll, whether it be complained of or not.

It may also make any correction in the style of the drawing up thereof.

4509. At such session, or so soon thereafter as all the complaints filed have been decided, the council declares the roll homologated; and the roll so homologated shall be in force, until the entry into force of a new roll.

The article 4546 of said 1909 revision deals with the collection of school rates.

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And then practically the law remained the same until the statute of 13 Geo. V, quoted above.

There was an appeal given by art, 5715 of said Revised Statutes of 1909 to the Circuit Court, and so continued until said 13 Geo. V, when continued by section 493 thereof, as follows:—

493. An appeal shall lie to the Circuit Court of the county or of the district, or to the District Magistrates Court:

1. From any decision of the council under sections 485, 486, 488, 489 or 491, within thirty days from such decision, whether the council rendered same of its own accord or upon a complaint or petition filed in virtue of such sections;

2. Whenever the council has neglected or refused to take cognizance of any written complaint made in virtue of section 484, or of a petition presented in virtue of sections 489 or 491, within thirty days after the sitting at which it should have taken cognizance thereof.

Sections 499, 500, 501 and 502 thereof are as follows:—

499. The court, may, by its judgment, confirm the decision appealed from, annul or amend the same, or render such decision as the council ought to have rendered, or order it to exercise the functions respecting which recourse is had.

500. The decision may be set aside only when a substantial injustice has been committed, and never by reason of any trifling variance or informality.

501. The court, in adjudicating upon the appeal, may condemn either party to costs; and, if the decision appealed from be modified, it may order its judgment to be served upon the municipality, and such judgment shall be final and executory. After the judgment upon the appeal, all original documents transmitted by the municipality in consequence of the appeal shall be returned to the latter.

502. Every appellant who neglects to prosecute effectually the appeal, shall be deemed to have abandoned the same, and the court, on application by the respondent, may declare all the rights and claims founded on the said appeal forfeited, with costs in favour of the respondent, and order the transmission of the record to the municipality.

Such were the clear ways open to the appellant for relief against the said items of the transformers and metres in question, and it never appealed. Why? I cannot believe that it ever was thought by those acting for it that, if liable at all, they could hope for relief by anything rested solely on the said trifles.

I can conceive that they felt encouraged as their predecessors had been by the judgment of Mr. Justice Green-shields in the belief that none of the properties in question could be held liable and the whole assessment be held void as ultra vires, just as many others had been in Ontario or Quebec, before the law was made clear by legislation,

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when the assessments had possibly in some such apparent like cases been held void.

I can find no settled jurisprudence holding in such like cases as where only a fractional part or item of the subject matter assessed had been illegal on any ground, that therefore the whole assessment was void, and hence no need to resort to the mode of relief provided in such manifold ways as were open to appellant herein.

The case of Donohue Brothers v. St. Etienne de la Malbaie[13], decided by this court, is the first of the kind upheld. And that proceeded upon the assumption that the Toronto Railway Case[14] was of the same nature. I have shewn above that the ultimate decision therein was where one item of a very large assessment was singled out to test the matter, and that single item being wholly nonassessable, it was held appellant was not obliged to resort to applying for relief to courts of revision, etc.

Many like cases had preceded this one as will appear from a perusal of the case of Nickle v. Douglas[15], where the item in dispute was wholly for property held thereby, to be owned in Montreal and not in Kingston, where appellant was assessed, and hence beyond the jurisdiction of the Kingston authorities to deal with.

In that and such like cases where nothing else was involved than the one or more items non-assessable, hence clearly ultra vires, those concerned in escaping taxes in respect thereof had no need to pursue any of the means of appeal such as were open to the appellant herein.

That Toronto Case14 was to my mind clearly not in point.

The Donohue Brothers Case13 did not pursue the same course as this appellant, but resorted to an action under article 50 C.C.P., and for that reason alone is clearly distinguishable from that involved herein.

Moreover it was supported by a bare majority of this court and the respondent therein got leave from the Judicial Committee of the Privy Council to appeal there, and thus cast a doubt on the said decision, though that appeal

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was not argued but settled by the parties and, with their consent, dismissed.

For these and many other reasons I think it is clearly distinguishable and, therefore, not binding upon me. And I am not able to escape the onerous burden of labour cast upon me by reason of the facts which do not prove the case, and, in law, seem to have no substantial merits, if: any at all.

I do not think it is necessary for me to trace out and demonstrate the correct interpretation of the legislation laying the foundation for the imposition of taxation in such like cases as this.

I am sorry that the framer of the Acts involved did not consistently adhere throughout to the absolutely right expressions so as to avoid needless argument, but the meaning is on the whole clear.

I may add that the school authorities no doubt had the right to the taxes it has assigned to respondent and sued for by it herein.

I think the sections of the Acts above quoted make clear the respondent’s right to recover the several sums respectively claimed, with interest from and after the respective due dates of each homologation of the assessments, which by the council and by virtue of the several Acts respectively relevant to each assessment had the effect of declaring said respective assessments valid.

The appeal should be dismissed with costs.

Appeal allowed in part.

Solicitors for the appellant: Brown, Montgomery & McMichael.

Solicitor for the respondent: J. W. Weldon.